Zafiratos, In re
| Citation | 486 P.2d 550,259 Or. 276 |
| Parties | In re Complaint as to the conduct of Nicholas D. ZAFIRATOS, Accused. |
| Decision Date | 23 June 1971 |
| Court | Supreme Court of Oregon |
John R. Faust, Jr., Portland, argued the cause for accused. With him on the briefs were Cake, Jaureguy, Hardy, Buttler & McEwen, Portland.
Lewis B. Hampton, Beaverton, argued the cause for the Oregon State Bar. With him on the brief was Karl W. Freerksen, Jr., Beaverton.
This is a disciplinary proceeding initiated by the Oregon State Bar. The lawyer involved practices law in the city of Astoria and was the part-time municipal judge.
The accused lawyer does not contest the findings of guilty made by the Board of Governors in three of the charges.
In the first charge the facts were that a couple came to the accused wanting a divorce. They had worked out the terms of a property settlement and there was to be no contest. He told them he could not represent both and undertook to represent the husband as plaintiff. At this same conference the wife said she wanted to get an annulment of a previous marriage. The accused told her an annulment was not necessary; however, she wanted one and the accused represented her in the annulment proceeding. This proceeding was in no way connected with the divorce proceeding or affected the accused's divorce client, the husband.
The accused admits that such conduct was in violation of Canon 7 of the Rules of Professional Conduct in effect at the time of such conduct. Drinker, Legal Ethics, 113 (1953).
In another charge the accused admitted that he had sat on a traffic case and found a Mr. Abrahamsen guilty and thereafter represented a Mr. Ahola in a civil action against Mr. Abrahamsen for property damage arising out of the collision which was the basis for the traffic charge against Mr. Abrahamsen. The accused did not remember he had tried the traffic charge and when reminded by Mr. Abrahamsen's attorney, the accused withdrew and collected no fee.
There was a second charge involving different persons; however, the facts were legally similar. The traffic court proceedings in both were in the spring of 1966 and the civil litigation in the summer and fall of 1968.
The conduct of the accused in both these incidents was improper. We subscribe to the opinion of the Legal Ethics Committee of the Oregon State Bar as expressed by its Opinion No. 125, approved by the Board of Governors May 24, 1963. That opinion was that it is improper 'for an attorney-justice of the peace (and we add any other judicial officer authorized to practice law) engaged in private practice to represent any person, who has been involved directly or indirectly as a party or witness in any proceeding before him as a JP, in a case arising out of or related to any such proceeding.'
A charge that the accused contests as not constituting unethical conduct also concerns the relationship between the accused (as judge and attorney) and a client. The accused represented a client charged with a crime. During this representation the client appeared before the accused as judge on several occasions upon a traffic charge unrelated to the criminal charge in which the accused was representing the client. Eventually, the accused ordered forfeiture of bail which had been posted by his client in the traffic charge.
No cannon of judicial ethics specifically forbids a judge from sitting in a case in which a client is a party; however, we are of the opinion that such conduct is patently improper. Canon 13, by implication, prohibits a judge sitting in judgment upon his client:
'He should not act in a controversy where a near relative is a party; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person.'
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People v. Lowenstein
... ... A judge must also disqualify himself when one of the parties happens to be his client. Armstrong v. Ann Arbor, 58 Mich.App. 359, 227 N.W.2d 343, lv. den. 394 Mich. 783 (1975), In re Zafiratos, 259 Or. 276, 486 P.2d 550 (1971). He must also disqualify himself where a party happens to be a relative. Barnes v. Cooper, 507 S.W.2d 157 (Ky.1974). 5 Furthermore, he must disqualify himself in a subsequent contempt trial where he was the victim of the contempt. Mayberry v. Pennsylvania, 400 ... ...
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Conduct of Thorp, In re, OSB
... ... " * * * if a lawyer undertakes litigation for a subsequent client which, if successful, might reasonably impose liability on a former client by reason of a transaction in which the lawyer represents the former client." In re Nicholas D. Zafiratos, 259 Or. 276, 281, 486 P.2d 550 (1971) ... After the adoption of DR 5-105, we reaffirmed the above statement in In re Adams, 293 Or. 727, 737-38, 652 P.2d 787 (1982) ... In re Banks, supra, is a case where the conflict of interests resulted from disputes ... ...
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... ... 1.220 and Canon 30 of the Canons of Judicial Ethics both clearly provide that upon assuming judicial office a judge may no longer practice law in any manner, without qualification, and whether or not for compensation. 12 ... As we said in In re Nicholas D. Zafiratos, 259 Or. 276, 281, 486 P.2d 550, 553 (1971): ... 'We are of the opinion that the accused's misconduct, particularly as a judge, was such that any thinking lawyer should have known it was unethical. * * *.' ... Just as an attorney is held by the Code of Professional ... ...